Winders v. Hill
| Decision Date | 22 May 1907 |
| Citation | 57 S.E. 456,144 N.C. 614 |
| Parties | WINDERS et al. v. HILL et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Duplin County; E. B. Jones, Judge.
Action by J. B. Winders and others against E. J. Hill and others. From an order of the court sustaining defendants' motion to dismiss, plaintiffs appeal. Affirmed.
In an action for specific performance of a contract to convey land the postscript to a letter of defendant's agent to defendant, stating that he had given plaintiffs a receipt for the price of certain land, and that he desired a receipt from defendant to show that he had paid to him the money thus received from them, does not prove that defendant by himself or his agent ever admitted the existence of a memorandum signed by his agent and showing a contract of sale between him and plaintiffs, even if a written admission would be sufficient to satisfy the statute of frauds.
Rountree & Carr and Geo. E. Butler, for appellants.
Stevens Beasley & Weeks and Fuller & Fuller, for appellees.
This case was before us at a former term and was heard and decided upon a demurrer to the complaint. It is reported in 141 N.C 694, 54 S.E. 440. We then held that upon the facts as stated in the original complaint and admitted by the demurrer there was some evidence of ratification by the defendant E. J Hill, the principal of L. F. Hall, if the latter had exceeded his authority in selling the land on credit, instead of for cash. The court further held that another party was interested with the plaintiff Winders in the prosecution of the action, as appeared by the complaint, and directed that he should be brought in by process and made a coplaintiff. This was done and the original complaint was superseded by an amended complaint for the purpose of declaring also in behalf of the new plaintiff, W. I. Hill, and of making material allegations of fact not found in the first pleading. The defendant answered, denying the contract which the plaintiff alleged had been made by L. F. Hall as agent for the defendant E. J. Hill, and also averring that, if any such contract had been made, his agent, Hall, had exceeded his authority in executing it, and also denying the allegation of the complaint that, if there had been any such excess of authority, the defendant E. J. Hill waived or ratified the unauthorized act of his agent Hall by his own conduct, and, if not in that way, then by and through the acts and conduct of his lawfully authorized agent I. F. Hill. There were many other averments of fact in the pleadings upon which issue was taken, but it is not deemed necessary to set them out, as our decision of the case, as at present constituted, must rest upon a single point to which they are not considered relevant. Omitting, for the present, all reference to the matter of ratification, we will confine ourselves to a statement of such facts as have any bearing upon the decisive question in the case, but we may premise that the evidence adduced at the last trial does not correspond with the allegations as made in the original complaint. There are striking and essential differences between them. Both parties introduced evidence upon the issues joined between them, viz., first, as to the execution of the contract of sale by the agent Hall; second, as to whether he had exceeded his authority in making the same; and, third, as to whether, if he had done so, his unauthorized act had been ratified. At the close of the testimony the defendant moved to dismiss the action under the provision of the statute. Revisal 1905, § 539. It seems that after this motion was made the defendant's counsel suggested, as one ground of the motion, that the plaintiffs had not put in evidence any written contract between L. F. Hall, agent of E. J. Hill, and the plaintiffs Winders and his associates, nor any memorandum thereof signed by the defendant E. J. Hill, or his said agent. The plaintiffs' counsel thereupon asked permission of the court to introduce the memorandum of a contract between Hall, as agent, of the first part, and Winders and others, of the second part, which is in the form of a receipt and dated July 29, 1905, and is fully set out in the statement of the case on the former appeal. This the court refused to grant, and the case was heard without the receipt. The court sustained the motion to dismiss, and the plaintiffs excepted and appealed.
The defendants having taken issue with the plaintiffs as to the existence of any contract between Hall, his agent, and Winders, by denying the allegation to that effect in the complaint, they could avail themselves of the statute of frauds without specially pleading it, for it has been settled by numerous adjudications that if the contract is denied, or a contract different from that alleged is set up, or if the contract is admitted and the statute of frauds is specially relied on by plea, or now by answer, parol evidence of the contract is incompetent. As the contract cannot be proved, it cannot be enforced. Holler v. Richards, 102 N.C 545, 9 S.E. 460; Jordan v. Furnace Co., 126 N.C. 143, 35 S.E. 247, 78 Am. St. Rep. 644; Hall v. Lewis, 118 N.C. 509, 24 S.E. 209; Browning v. Berry, 107 N.C. 231, 12 S.E. 195, 10 L. R. A. 726; Morrison v. Baker, 81 N.C. 76; Bonham v. Craig, 80 N.C. 224; Thigpen v. Staton, 104 N.C. 40, 10 S.E. 89. Where the plaintiff sues upon a contract, the performance of which he seeks to enforce specifically in equity or for the breach of which he seeks to recover damages at law, he must establish the contract by legal evidence, and, if it is required by the statute to be in writing, then by the writing itself, for that is the only admissible proof. Fortescue v. Crawford, 105 N.C. 29, 10 S.E. 910; Gulley v. Macy, 84 N.C. 434; Wade v. Newbern, 77 N.C. 460; Jordan v. Furnace Co., supra. The court was right in sustaining the motion to nonsuit, because no evidence of the contract had been introduced, unless there was proof of it or something in the case which dispensed with such proof. 26 Cyc. pp. 316, 320; Bambrick v....
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